VHT filed a copyright infringement suit against Zillow, alleging that Zillow's use of photos on its Listing Platform and Digs exceeded the scope of VHT's licenses to brokers, agents, and listing services who provided those photos to Zillow. The Ninth Circuit held that VHT failed to satisfy its burden of demonstrating that Zillow directly infringed the photos displayed on the Listing Platform, because VHT failed to provide evidence showing that Zillow exercised control; selected any material for upload, download, transmission, or storage; or instigated any copying, storage or distribution of the photos. The panel also held that VHT did not present substantial evidence that Zillow, through the Digs platform, directly infringed its display, reproduction, or adaption rights in 22,109 not displayed photos and 2,093 displayed but non-searchable photos. However, the fair use defense did not absolve Zillow of direct liability for 3,921 displayed, searchable Digs photos.
The panel affirmed the district court's grant of Zillow's motion for judgment notwithstanding the verdict with respect to secondary infringement, both contributory and vicarious infringement. In regard to damages, the panel remanded to the district court for further proceedings as to whether the VHT photos remaining at issue were a compilation, and held that substantial evidence did not show Zillow was actually aware of its infringing activity nor was it reckless or willfully blind to its infringement. Accordingly, the panel affirmed in part, reversed in part, and remanded. View "VHT, Inc. v. Zillow Group, Inc." on Justia Law

A Zestimate is an estimated value for real estate, generated on the Zillow website by applying a proprietary algorithm to public data, such as location, tax assessment, number of rooms, and recent selling prices. Zillow does not inspect the building nor adjust for whether a property is attractive or well-maintained. Zillow states that its median error (comparing a Zestimate with a later transaction price) is less than 6%. The Zestimate is off by more than 20% in about 15% of all sales. Zillow informs users that Zestimates may be inaccurate. Plaintiffs learned that the Zestimates for their parcels were below the amounts they hoped to realize. Zillow declined requests to either to increase the Zestimates or remove the properties from the database. Plaintiffs sued, citing the Illinois Real Estate Appraiser Licensing and Uniform Deceptive Trade Practices Acts. The Seventh Circuit affirmed dismissal. The plaintiffs lack a private right of action under the appraisal statute, which makes unlicensed appraisal a crime; an administrative agency may impose fines for unlicensed appraisal and issue cease-and-desist le\ers that can be enforced by injunctions. Illinois courts create a non-statutory private right of action “only in cases where the statute would be ineffective, as a practical ma\er, unless such action were implied.” Given the multiple means of enforcing the licensing act, and the penalties for noncompliance, a private action is not necessary. The Trade Practices Act deals with statements of fact, while Zestimates are opinions. View "Patel v. Zillow, Inc." on Justia Law

The Fourth Circuit affirmed the district court's judgment concluding that defendant, chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she administered. The court held that Davison had standing because she adduced facts establishing an injury in fact sufficient to justify the prospective declaratory relief awarded by the district court; considering the totality of these circumstances, the district court correctly held that defendant acted under color of state law in banning Davison from the Chair's Facebook Page; and the interactive component of the Chair's Facebook Page constituted a public forum, and defendant engaged in unconstitutional viewpoint discrimination when she banned Davison's page from that forum. In regard to Davison's cross-appeal, the court rejected his assertion that the district court reversely erred by dismissing his claim against defendant in her official capacity and by denying his motion to amend. View "Davison v. Randall" on Justia Law

Defendants appealed the district court's judgment for plaintiffs, finding copyright infringement. Defendants created an Internet platform designed to enable the lawful resale, under the first sale doctrine, of lawfully purchased digital music files, and had hosted resales of such files on the platform.
The Second Circuit held that defendants infringed plaintiffs' exclusive rights under 17 U.S.C. 106(1) to reproduce their copyrighted works. In this case, the operation of ReDigi version 1.0 in effectuating a resale resulted in the making of at least one unauthorized reproduction. Such unauthorized reproduction violated the right holder's exclusive reproduction rights under section 106(1) and was not excused as fair use. The court declined to make a decision as to whether ReDigi also infringed plaintiffs' exclusive rights under 17 U.S.C. 106(3) to distribute their works. View "Capitol Records, LLC v. ReDigi Inc." on Justia Law

The Eleventh Circuit affirmed the district court's grant of summary judgment for Via Varejo in an action brought by Direct Niche under the Anticybersquatting Consumer Protection Act (ACPA), seeking to obtain a declaratory judgment that its registration and use of the domain name casasbahia.com was not unlawful under the ACPA. At issue on appeal was whether Via Varejo owned the Casas Bahia service mark in the United States. The court held that Via Varejo owns the Casas Bahia service mark in the United States where it contracted with U.S. companies to provide advertising of their goods on the Casas Bahia website. Furthermore, Via Varejo's marketing director testified to his personal knowledge that the Casas Bahia Website receives millions of visits every year from IP addresses located in the United States. Therefore, the district court's conclusion that the evidence demonstrated sufficient public use in commerce to establish ownership of the mark was not clearly erroneous. View "Direct Niche, LLC v. Via Varejo S/A" on Justia Law

The Ninth Circuit reversed the district court's order denying plaintiff's motion for attorney's fees in a copyright infringement action brought by a film production company, alleging that a single user illegally downloaded and distributed repeatedly American Heist, a Hollywood action movie. In Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), the Supreme Court laid out factors to guide discretion in whether to award fees. The panel held that the district court did not faithfully apply the Fogerty factors in this meritorious BitTorrent action. The panel noted that the district court's analysis of whether fees are warranted should be based on Glacier's case against defendant, and not on the district court's view of BitTorrent litigation in general or on the conduct of Glacier's counsel in other suits. Therefore, remand was necessary because the district court denied fees under the present circumstances based on a one-size-fits-all disapproval of other BitTorrent suits. View "Glacier Films (USA), Inc. v. Turchin" on Justia Law

The Ninth Circuit affirmed the dismissal of an action alleging that when Yahoo! invested in Alibaba.com, a Chinese retail website, Yahoo! violated the conditions of its exemption, granted by the SEC, from the registration requirements of the Investment Company Act (ICA). Plaintiff brought derivative claims against Yahoo!'s board of directors and certain corporate officers, as well as one direct claim against Yahoo!, under the ICA. The panel held that plaintiff failed to state a claim because the ICA does not establish a private right of action for challenging the continued validity of an ICA exemption. View "UFCW Local 1500 Pension Fund v. Mayer" on Justia Law

The Second Circuit affirmed the district court's judgment in an action filed by seven former participants in online discount membership programs, alleging that Trilegiant conspired with e‐merchant retailers such as Buy.com, Orbitz, and Priceline to enroll the retailers' customers in the membership programs via deceptive post‐transaction marketing and datapass techniques. The court held that prohibitions on the Electronic Communications Privacy Act did not apply in this case because plaintiffs failed to raise a material issue of fact as to whether they consented to enrollment in the membership programs. Therefore, the court affirmed the grant of summary judgment as to that claim. The court affirmed the dismissal of the racketeering claim, holding that plaintiffs could not proceed on a theory of racketeering because they did not identify an actionable fraud. Finally, the court affirmed the grant of summary judgment on the Connecticut Unfair Trade Practices Act and unjust enrichment claims, holding that plaintiffs have not shown that they were entitled to a refund of membership fees and Trilegiant was not unjustly enriched by not issuing the refunds. View "Williams v. Affinion Group, LLC" on Justia Law

In 2013, federal agents obtained an 18 U.S.C. 2703 warrant requiring Microsoft to disclose all e-mails and other information associated with a customer's account that was believed to be involved in illegal drug trafficking. Microsoft determined that the account’s e-mail contents were all stored in Microsoft’s Dublin, Ireland datacenter and moved, unsuccessfully, to quash the warrant with respect to that information. The court held Microsoft in civil contempt. The Second Circuit reversed, holding that requiring Microsoft to disclose the electronic communications in question would be an unauthorized extraterritorial application of section 2703. In March 2018, Congress enacted and the President signed the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), Pub. L. 115–141, amending the Stored Communications Act, 18 U.S.C. 2701, to add: “A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” The Supreme Court vacated, finding the case moot. No live dispute remains between the parties over the issue with respect to which certiorari was granted; a new warrant replaced the original warrant. View "United States v. Microsoft Corp." on Justia Law

Starting in 2008, Sunmola carried out an online romance scheme from South Africa, targeting middle-aged women in Georgia and Illinois. Sunmola often used pictures of men in U.S. military uniforms in his online profile to gain the victims' trust; they made electronic fund transfers after his false claims of financial distress. Sunmola secretly recorded some victims in sexually suggestive positions, then sent extortion demands. Authorities also discovered evidence of credit card fraud affecting businesses. He was charged with conspiracy, mail fraud, wire fraud, and interstate extortion. Authorities arrested Sunmola in London and transferred him to U.S. custody. Three days into his trial, Sunmola openly pleaded guilty to all counts, admitting to the essential elements of each offense. The judge accepted the pleas without a plea agreement. Applying several enhancements and considering other section 3553(a) factors, the district court sentenced Sunmola to 324 months in jail with an adjusted restitution payment of $1,669,050.98. The Seventh Circuit affirmed, rejecting challenges to a four-level “substantial financial hardship” sentencing enhancement, a two-level “vulnerable victim” adjustment, a two-level enhancement for acting on behalf of a government agency, and a four-level adjustment for acting as the organizer or leader. The court upheld the restitution calculation and application of general deterrence in his final sentencing. View "United States v. Sunmola" on Justia Law